Tag Archives: Free Speech

This week, the United States Supreme Court will hear arguments in Masterpiece Cakeshop vs. Colorado Civil Rights Commission. The case involves Colorado’s civil rights statutes which prohibit discrimination based on sexual orientation. The petitioner — a baker — claims that he should be exempt from that requirement because he believes that gay marriage is morally wrong and, by making him sell a wedding cake to the happy couple, the Colorado law is compelling him to endorse the wedding.

In many ways, this case is similar to the Hobby Lobby case from several years ago, but, in some key ways, it is different. The main difference requires going back thirty years to a rather infamous free exercise decision, Employment Division of Oregon vs. Smith. In Smith, Justice Scalia all but wrote the Free Exercise Clause out of the Constitution — holding that it created no exemption based on religious belief from a generally applicable law. In response, Congress passed the Religious Freedom Restoration Act which was intended to restore the pre-Smith interpretation of the Free Exercise Clause. There are, however, two problems with the Religious Freedom Restoration Act. First, as shown by Hobby Lobby, it actually created more protections than the pre-Smith decisions. Second, the United States Supreme Court has held that it only creates a rule for interpreting federal statutes and that Congress does not have the power to impose a similar rule on the states. Because this case involves a state law, the RFRA does not apply. While the baker attempts to raise a free exercise claim, that claim is unlikely to succeed under Smith as the ban on discriminating against homosexuals is a law of general application. That does, however, leave the free speech claim.

The free speech claim brings us back into the Hobby Lobby universe where the question is whose perception controls. Besides actual speech, free speech protection extends to expressive conduct. Furthermore, as a general matter, the government may not compel speech. The question is thus who is speaking in this case — a question that could blow a significant whole in civil rights law.Continue Reading...

The late Supreme Court Justice Hugo Black was famous for a very literal interpretation of the First Amendment — that the language in the Amendment providing that “Congress shall make no law” meant that Congress should make no law. While the current Supreme Court does not go quite as far as Justice Black, a consistent theme of the Roberts Court has been — with the occasional exception that proves the rule — a very broad interpretation of the First Amendment to strike down any law in which the government either directly (by banning it) or indirectly (by favoring other speech) regulates speech. Simply put, if there is a free speech component to your case, the expectation has to be that the government will lose if the Supreme Court grants review and the only question is exactly how the justices will line-up in the decision.

This week saw the last two free speech opinions of the term (there is a remaining free exercise case that could incorporate some of the recent free speech cases into that sphere of law) — both issued on Monday. In both cases, the ultimate decision was unanimous, but there was a liberal-conservative split in the reasoning.

The more “traditional” case was Packingham v. North Carolina. This case involved a North Carolina statute that barred registered sex offenders from accessing commercial social networking website if juveniles could also join that site. (Under the very broad definition used by North Carolina, this site might qualify.) All eight justices (the case was heard in February before Justice Gorsuch joined the Court) agreed that the statute was overbroad and not narrowly tailored due to the sheer number of sites covered by the statute that were not primarily designed to facilitate the type of one-on-one real world interaction that the Court saw as the legitimate purpose behind the statute. The main disagreement in the case — between Justice Kennedy writing for the “liberal” majority and Justice Alito writing for the three conservative justices — was how to characterize the internet. The majority described the internet as the functional equivalent of public streets and parks. (In free speech law, streets and parks are considered “public forums” and the government’s ability to regulate is very limited — some content-neutral “time, place, and manner” restrictions like requiring parade permits are allowed, but such restrictions are closely examined to determine that they are not being used to prevent speech.) From a factual point of view, this analysis is partly accurate. The internet itself is arguably like a street, but the individual websites are more like private homes and offices. The dissent — borrowing from language in the majority about the need to be cautious in applying existing legal categories to the internet to avoid inhibiting the speed at which the internet is changing — thought that it was not necessary to categorize the internet as a public forum. (Because both opinions recognize that preventing crime is a legitimate governmental interest potentially supporting restrictions on sex offenders, there are likely to be future cases considering whether other restrictions — whether imposed on sex offenders on a case-by-case basis or statutes that apply to certain categories of sex offenders across the board — are narrowly tailored.)Continue Reading...

Like much in government (including the school-year that many of us remember from growing up), the Supreme Court follows a cyclical calendar. Beginning with the first Monday in October, the Supreme Court has seven argument sessions each year. Each session is two weeks followed by a recess. Five of these recesses are for two weeks, but the recesses taken over Christmas and after the January arguments are usually for four weeks. During these approximately thirty weeks, the Supreme Court is engaged in three basic tasks: 1) reviewing applications from parties that want their cases heard by the Supreme Court; 2) preparing for and holding arguments in those cases that have been accepted; and 3) writing opinions. Because the task of preparing for arguments (reading the written arguments of counsel and reviewing the record from the trial court to get an idea of the “facts” underlying to which the law has to be applied) is time consuming, opinions tend to slowly dribble out during these first thirty weeks. As a result, when the arguments end in late April (or early May depending upon the calendar), there are typically a significant number of cases still waiting for opinions.

During this year’s term, as is not unusual, there were a handful of opinions issued in December and January (a total of six) with the number going up slightly during February, March, and April (a total of twenty-one so far with the possibility of several more on Monday before the Supreme Court leaves for its final recess. However, with arguments for the year having wrapped up this past Wednesday, there are currently thirty-eight cases in which opinions have not yet been issued. While there are some exceptions to the rule, by this time of year, the Supreme Court has issued opinions in most of the cases heard last Fall. During the argument portion of the year, it takes between two and six months to get an opinion. The simple cases in which there is unanimous agreement among the Justices (which represent about half of the cases) tend to come quickly. When the Justices disagree, the process stretches out as the Justices in the minority draft opinions responding to the majority opinion, and the majority opinion then makes changes to address the issues raised by the minority (and so on until everyone believes that no further changes are needed). The bottom line is that, at this point of the year, opinions have been issued for all of the October arguments, for about two-thirds of the November and December arguments, for about half of the January and February arguments, and for none of the March and April arguments. The expectation, especially for the remaining cases from November and December, is that the delay represents some significant disagreement in the early cases.

Before going into the highlights of what is left to come down — either on Monday or more likely between mid-May and the end of June when the Supreme Court returns from its last recess — one point to make. Justice Gorsuch only participated in the arguments for this last two-week session. The tradition is that a Justice does not vote in cases heard before the Justice joined the Supreme Court. However, it is not unusual to schedule a case for re-argument if the a Justice joins the Court after argument and the vote of the eight Justices who heard the case is split 4-4.Continue Reading...

The big court story of 2016 was the February death of Justice Antonin Scalia. In an unseemly display, before the body was even buried, the Republican leadership in the Senate announced that they would not confirm any nominee made by President Obama. However, while they did not make any official announcement about other judicial vacancies, the Republicans’ approach to the Supreme Court vacancy was consistent with their approach to the judiciary in general. The outgoing Senate only confirmed 22 judicial nominees over the last two years and did not confirm anybody nominated after September 2015 (with the last confirmation vote occurring before the July 2016 recess). By comparison, in the last two years of the George W. Bush Administration, a Democratic Senate confirmed 67 judicial nominees with the last confirmation vote occurring in September 2008 for a person nominated in July 2008.

At the end of the day, the Democrats lost a golden opportunity to bring an end to four decades of Republican control of the Supreme Court. A win this past November would have led to a solid Democratic majority for the next two or three decades. However, the reality is that for the past forty years, moderately conservative Republicans on the court have formed a barrier to the more extreme positions in the Republican party winning on several issues. As such, controlling the Supreme Court has mattered more to Republican leaners than to Democratic leaners. (Several conservatives argued that Republicans should hold their noses and vote for Trump to keep control of the Supreme Court.) At some point, Democrats may wake up and find a court in which Justice Samuel Alito is the swing vote, but we are not there yet. The Republican stand on the Supreme Court probably made some Republican Senate seats more vulnerable than they would have been, but Democrats failed to explain why control of the Supreme Court matters. Democratic voters may soon suffer for this failure of leadership.

One of the broad themes of the Roberts Court has been an expansive interpretation of free speech rights (best exemplified by its campaign finance cases). Over the past seven terms, the Supreme Court has heard twenty-four cases with some free speech aspect. Despite the public perception, the Supreme Court has not uniformly held in favor of free speech (free speech only having clear wins in 14 of the twenty-four cases and partial wins in 2 of the twenty-four cases). This term, however, was the roughest term for free speech advocates since at least 2009.